How European “Hate Speech” Laws are threatening Freedom of Speech
Q: Why should modern Europe be concerned about freedom of speech?
Freedom of speech is the foundation stone of every truly free and democratic society. “Without freedom of speech there cannot be genuine discussion amongst citizens, and without discussion there is no democracy” (Censored, p.11). Freedom of speech is also the first freedom to be removed by illiberal states. For example, upon seizing power in 1933, Hitler’s first “emergency decree” was a restriction on freedom of speech. After the Second World War, it was the Soviet Union and her allies that pushed for speech restrictions throughout Europe. In Europe’s recent past, speech restrictions have been used by illiberal states to silence dissent. We should be greatly concerned by sleepwalking into the same situation today.
Q: In your book CENSORED you analyze hate speech cases. In a nutshell, what is your conclusion and outlook after having worked them through?
The fifty “hate speech” cases I have collated in Censored demonstrate one thing beyond doubt: “hate speech” laws do not work in practice. It is impossible for the authorities to draw the line between acceptable and illegal. Hence, “the concept of ‘hate speech’ is so slippery that it can be applied to almost any speech and any situation: a pastor’s sermon, a protestor’s sign, a private conversation – there are no discernible limits” (Censored, p.83).
Europe’s free speech situation grows worse by the year as more “hate speech” laws are passed, more “hate speech” cases are prosecuted, and restrictions move from the criminal law into all aspects of life – university campuses, workplace codes of conduct, Facebook rules, and so forth.
“Once the shrinking dictionary begins, there is no logical stopping point” (Censored, p.43).
Q: Your examples regularly involve religious circumstances. Are there issues that can be more freely discussed than others? And do religious topics face more restrictions than other topics?
There are four reasons why religious speech faces particular challenges in Europe. Firstly, illiberal states are always concerned about religion, because religious adherents believe in a higher power beyond the role and reach of the state. They do not consider the state to be the ultimate authority, and the illiberal state does not like this. Therefore, because religiously motivated speech often challenges the state and state-mandated orthodoxy, it becomes a primary target of state-backed censure.
Secondly, religious speech can often be sensitive in nature because of the depths of feelings of the adherents, the importance of the topic – the very meaning of life itself – and the stark differences of opinion that often ensue. State authorities, claiming a desire to maintain public order, often become overly sensitive to religiously motivated speech
Thirdly, some religions see it as the state’s role to punish apostasy. Under this view, the state must penalize those who criticize their religious doctrines or leaders. Hence, many cases in Europe are triggered by offended religious adherents filing a complaint with the state.
Fourthly, some religions are automatically equated with race, and any criticism of the religion is immediately considered racist, attracting the heightened scrutiny of state authorities.
Q: Some argue that we see an increasing radicalisation of opinion and speech. The spreading of extremist ideas can bring much harm. Maybe even more than some restrictions on the freedom of expression?
According to two judges of the European Court of Human Rights, “extremist opinions can bring much more harm than restrictions on freedom of expression” (Censored, p.85). According to this view, we can end extremism by restricting speech. But there is scant evidence that this is an effective strategy. Restrictions on speech in the Weimar Republic did nothing to stop the rise of Nazism, and similar restrictions in Yugoslavia did nothing to stop the rise of nationalism and the ensuing mass conflicts.
Today, the hundreds of speech restrictions across Europe are doing nothing to counter the undisputed rise in popularism, extremism, and nationalism.
On the contrary, there is evidence to suggest that restrictions on speech have the exact opposite effect, driving hatred and extremism underground, and making martyrs out of the extremists who use their “hate speech” trials as platforms. Moreover, “[i]n addition to the risk that criminalizing speech causes more tension and aggravation than it actually alleviates, the ability to speak freely is also the best tool to combat oppression and to counter hatred” (Censored, p.95).
Q: The European Commission has just recently announced that it will partner with global IT and social media companies to curb hate speech online. Is that sensible?
The European Commission’s new Code of Conduct is completely unworkable, and its illiberal content is matched by the illiberal way in which it was unveiled. No discussion. No consultation. No voting. No appeals mechanism. Just sheer political power, enforced on a continent overnight. IT companies cannot possibly determine which speech is “legal” and which speech is (in the view of the EU) “illegal”, within a 24 hour period. And they cannot police the daily digital chatter of 500 million people. Instead, this policy will be selectively targeted against those who challenge prevailing political and cultural orthodoxy. Read more at Spiked.
Q: Should there be any regulation on speech? What about offending religious feelings or mocking people’ beliefs?
For decades, European nations have tried and failed to regulate their citizens’ speech, often with devastating consequences. “[R]estrictions on freedom of speech should be extremely narrow and very well defined. Accordingly, the law should only restrict so-called “hate speech” when there is an incitement to imminent violence. Where there is no such incitement, citizens should be free to insult, offend, shock, mock, and criticize each other and the state, no matter how ridiculous, unpleasant, or unpopular the speech – such are the demands of true democracy” (Censored, p.12).
There are lots of things we may dislike in society, including unpleasant speech. The question is, should we really invoke the punitive arm of the state to eradicate the things we dislike, and do this under the banner of democracy?
“‘Hate speech’ laws invest vast amounts of power in the arms of the state to regulate speech, but without such laws the responsibility is placed onto the people” (Censored, p.138). Hence, society should not rely on the state to solve the problem of hateful speech. The onus should be on active and engaged citizens, not state coercion.
Q: Have we gone too far in putting the right to free speech above other rights such as private life?
Europe has done the exact opposite – watering down protections for freedom of speech, taking our freedom to speak for granted, and placing many other faux-rights such as freedom from offence above this foundation stone of democracy.
“Undoubtedly, giving strong protections to freedom of speech does not come without a risk—in a society that tolerates offensive and insulting speech there is always the risk that other citizens will be hurt and offended by what they hear. But that is the risk that liberal democratic nations simply have to take; there is no other choice. Once the premise is accepted that the state must censor public debate through the coercive criminal law, there is no logical stopping point, and the state will become empowered to prohibit the expression of an idea simply because the state, or society, finds that idea offensive or insulting” (Censored, p.140).
Most European countries have strong legal protections for freedom of speech, as do the majority of international legal instruments to which the nations of Europe have agreed to follow. We don’t necessarily need more legal free speech protections, we need the removal of “hate speech” laws that undermine these protections. “Accordingly, restrictions on speech should only be valid when the speech constitutes incitement to imminent violence. A higher free speech threshold will allow citizens to effectively regulate their conduct, as well as allowing the law to be applied without its current arbitrariness” (Censored, p.133).
Q: Why is ADF International, a religious freedom organization, championing this issue?
The connection between religious freedom and freedom of speech is obvious: people of faith are called to regularly meet with one another, to tell others about their faith and to uphold their convictions in public as well as in private. All of these actions require freedom to speak. As the European Court of Human Rights has stated: “Bearing witness in words and deeds is bound up with the existence of religious convictions”, and bearing witness includes “the right to try to convince one’s neighbour” (Kokkinakis v. Greece, 1994). Of course, attempting to convince one’s neighbour may sometimes cause offence – although hopefully not intentionally. “Hate speech” laws deliberately and effectively target religiously motivated speech, and must therefore be considered as one of the key threats to freedom of religion in Europe today.